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Mam Chajnd Vs. Sumat Prasad - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 333O of 1964
Judge
Reported in5(1969)DLT51
ActsCopying Agency Rules - Rule 13A; Slum Area (Improvement and Clearance) Act, 1956 - Sections 19
AppellantMam Chajnd
RespondentSumat Prasad
Advocates: A.K. Jain and; Dewan Chand, Advs
Cases ReferredShri Habibul Haq v. Shri Thakar Dass and
Excerpt:
.....be cause so far as rule 13-a.8 is concerned, it is followed by a separate ntoe of its own.; (ii) copying agency rules--duty of--copying agency to inform litigants of fate of their applications.; in the present case the order of the addl. rent controller was passed on 1-5-1964. as the order was passed in the absence of the appellant it was communicated to him on 16-5-1964. on 22-5-1964 the appellant filed an appeal before the rent control tribunal, but the memorandum of appeal was nto accompanied by certified copy of the order appealed against nor had the appellant filed an application for grant of certified copy till 29-5-64. even when such an application was filed by the appellant on 29-5-64 it was presented by him directly to the officer-in-charge of the copying agency instead of..........appeal challenges the correctness of btoh the bunds on which, the appeal has been dismissed by the rent contribunal. mr. a. k. jain, learned counsel for the appellant contends that the tribunal's decision on the question of limitation is wrong and that in any case this was a fit case in which the delay in filing the appeal should have been condoned. he further contends that the conditional order made by the competent authority granting permission to the respondent to execute the order of eviction is nto only illegal but also without jurisdiction and as such no execution could have been ordered on the basis of such an order.(7) it appears to me that btoh the contentions urged by the learned counsel are wholly devoid of substance. the necessary facts relating to the question of limitation.....
Judgment:

Hardayal Hardy, J.

(1) This second appeal is directed against an order made by the Rent Control Tribunal, Delhi whereby the tenunl's appeal against the order of the Addl. Rent Controller, Delhi was dismissed.

(2) The facts leading to the appeal are that the respondent-landlord obtained an order for eviction of the tenant-appellant from certain premises on 23/2/1962. The property being situated in colum area the respondent applied to the Competent Authority appointed under the Slum Areas (Improvement and Clearance) Act, 1956 for permission to execute the order for possession. This application was granted by the Competent Authority on 15/10/1963. The relevant portion of the order reads as under:-

'Iam inclined to pass a conditional order that the respondent shall pay the entire arrears amounting to Rs. 1883.72 by 29/2/1964. In case of default the respondent shall be liable to eviction. No formal permission will be required. Permission as contemplated under section 19 of the Slum Areas (Improvement & Clearance) Act, 1956 shall be deemed to have been granted in case of default.'

(3) The appellant did nto make any payment to the respondent and thus committed the default thereby bringing into operation he order granting permission. The respondent thereafter filed the necessary execution application which was granted by the addl. Rent Controller, Delhi by his order dated 1/5/1964 after caring the appellant's objections,

(4) Against the order of the Addl. Rent Controller, the appellant filed an appeal before the Rent Control Tribunal which too as dismissed as stated above.

(5) The two grounds on which the appeal was dismissed by the sent Control Tribunal are first, that the appeal was barred by the and, secondly that even if it was held to be within time, are was ntohing wrong with the order made by the Addl. Rent controller in view of the permission granted by the Competent athority under the Slum Areas (Improvement & Clearance) Act execute the order of eviction.

(6) This second appeal challenges the correctness of btoh the bunds on which, the appeal has been dismissed by the Rent Contribunal. Mr. A. K. Jain, learned counsel for the appellant contends that the Tribunal's decision on the question of limitation is wrong and that in any case this was a fit case in which the delay in filing the appeal should have been condoned. He further contends that the conditional order made by the Competent Authority granting permission to the respondent to execute the order of eviction is nto only illegal but also without jurisdiction and as such no execution could have been ordered on the basis of such an order.

(7) It appears to me that btoh the contentions urged by the learned counsel are wholly devoid of substance. The necessary facts relating to the question of limitation are that the order of. the Addl. Rent Controller was passed on 1/5/1964. As the order was; passed in the absence of the appellant it was communicated to him on 16/5/1964. On 22/5/1964 the appellant tiled an appeal before the Rent Control Tribunal, but the Memorandum of appeal was nto accompanied by certified copy of the order appealed against nor had the appellant filed an application for grant of certified copy till 29/5/1964. Even when such an application was filed by the appellant on 29/5/1964 it was presented by him directly to the Officer-in-charge of the Copying Agency instead of presenting it to the Addl. Rent Controller before whom the execution file was pending. In the absence of an order from the Addl. Rent Controller the application for grant of copy was refused by the Copying Agency on 10/6/1964. The appellant however did nto contact the Copying Agency till 17/7/1964 when, according to him, he came to know for the first time about the fate of his application. Then too he waited till 31/7/1964 and on that day presented a fresh application before the Addl. Rent Controller, Delhi. Meanwhile, it appears the file of the case had been called for by the Rent Control Tribunal in connection with the appeal filed by the appellant. The application was however returned to the appellant who was directed to present the same in the Copying Agency attached to the Court of District Judge, Delhi. This application was presented by the appellant in the said Copying Agency on 17/8/1964 and the copy was eventually delivered to him on 29/9/1964.

(8) It is apparent from the facts recited above that an appeal for which the law prescribes a period of 30 days, was actually filed by the appellant after the expiry of four months and 13 days. It cannto be disputed that till a certified copy of the order appealed against had been filed before the Tribunal there was no proper appeal by the appellant. Counsel for the appellant however submits that the time taken in obtaining a certified copy of the order should be added to the time required for presentation of the appeal. This very argument was raised by the learned counsel before the Tribunal but the argument was rejected on the ground that btoh the applications, viz., application dated 29/5/1964 made to the officer-in-charge of the Copying Agency and the application dated 31/7/1964 made to the Addl. Rent Controller were nto valid applications. The view taken by the Tribunal is that according to the rules framed by the Government for the supply of copies of records under the Control of Deputy Commissioners in cases pending in courts, the permission of the Presiding Officer of the court concerned must necessarily be obtained by the applicant before he presents his application to the Copying Agent. In the present case, the appellant should have obtained the permission of the Addl. Rent Controller in whose court the execution case was pending before he presented his application to the Officer-in-Charge of the Copying Agency. His application was thereforee rightly rejected on 10/6/1964, and he was obliged to file a fresh application on 31/7/1964. It is this latter application alone which could be treated as a valid application according to law. But by the time the said application was made by him the time for filing the appeal had already expired.

(9) As neither of the two counsel appearing for the parties was in a position to draw my attention to any such rules, I took time to consider the question. Mr. C. L. Mehra, Deputy P.egistrar of this Court has, however, placed before me on a requisition sent by him to the District Judge, Delhi a typed copy of certain rules called the 'Copying Agency Rules' which it is stated, are contained in an Old Manual issued by the Financial Commissioner, Punjab which, it is claimed, have been followed during all these years by civil, revenue and criminal courts toher than those of the District & Sessions Judges and courts of Small Causes throughout Punjab and Delhi. It has nto been possible for me to ascertain the statutory origin of these Rules. I am also nto quite sure about the tenability of these Rules which ex fade deal with the supply of copies of records under the Control of Deputy Commissioners. It is well-known that the Copying Agency concerned with the supply of copies of records pertaining to civil courts and the 'courts' of Rent Controller and Rent Control Tribunal (if it is permissible to use the appellation of 'Court' with respect to these two authorities), is under the Control of District Judge, Delhi and I am reliably informed that no such Rules have so far been framed in respect of the Copying Agency under the Control of the District Judge, Delhi.

(10) But even if there is some warrant for the continued applicability of these Rules to the Copying Agency under the control of the District Judge, Delhi there was hardly any justification for refusal of the appellant's application on 10/6/1964 on the ground that it was presented by him to the Copying Agency direct. Rule 13-A.8 of these Rules which appears under the sub-heading 'INSTRUCTIONS For The Submission Of APPLICATIONS' reads as under:-

'ANapplication for a copy, or copies, including requisitions. for free copies, should be made personally or through an agent, and in either case it may be sent by post to the Copying Agency at Headquarters, or in the case of sub-division tehsil headquarter or outlying court, to the Presiding Officer of the court concerned, provided in the latter case:-

(A)That the case, from which a copy is applied for, is pending or,

(B)That the copy can be prepared within 10 days of the passing of the final order of the court thereon.

NtoE: The authority of the agent need nto be a formal power of attorney.'

(11) This rule is followed by Rule 13-A.9 which reads as under:-

'ANapplication for a copy of a record of the High Court, or of a District or Sessions Court, or of an office or court of a commission or of the Financial Commissioners, made to a lower court, or office in which the record may be at the time of the application, shall be complied with only with the permission of the court or officer concerned:

THENthere are three ntoes under Rule 13-A.9 which read as under:-

(1)In no case shall a record be sent from the headquarters of a district to sub-division, or tehsil, or outlying court, to be copied.

(2)Applications for copies of records, nto under the control of the Deputy Commissioner, shall be transferred to the officer concerned for disposal.

(3)In cases pending in courts or in cases of an executive nature, the permission of the presiding officer of the court concerned or the Deputy Commissioner, as the case may be, should be obtained by the applicant before he presents his application to the copying agent at District headquarters or to the Officer-in-charge at tehsil etc.'

(12) The refusal of the appellant's application by the Copying Agency appears to have been ordered on the basis of Ntoe 3. In the context in which Ntoe 3 occurs it is nto clear whether it governs Rule 13-A.9 alone or is also applicable to Rule 13-A.8 because all the three ntoes follow Rule 13-A.9 which ends with a colon and nto with a fullstop. According to ordinary rules of construction, thereforee. Ntoes I to 3 should be held to form part of Rule 13-A.9 because so far as Rule 13-A.8 is concerned, it is followed by a separate ntoe of its own. Assuming, however, that ntoe 3 is of general application then too the language of the rules cannto easily lend itself to the construction that an application presented to the Copying Agency without first obtaining the permission of the Presiding Officer of the court concerned must be held to be invalid in all pending cases. Under Rule 13-A.IO every application for grant of copies has to be presented so far as possible in form C.D. I given at the end of these Rules. That Rule clearly mentions the name of the court in which the case is pending, the date of the order and certain toher particulars necessary for the purpose of locating the record.

(13) If the Rules are nto intended to be a trap for ignorant or unwary litigants it should be the duty of the Copying Agency to forward the application to the court concerned for permission in case it is found that the record is still in the custody of the Presiding Officer of that Court. There is no warrant for refusing such an application on the ground that the previous permission of the Presiding Officer of the court has nto been obtained. It is nto disputed that in decided cases the permission of the Presiding Officer is nto required and the application of the Rule is confined only to pending cases. The object underlying this Rule, as far as I have been able to make out, is that the record of a pending case should nto be withdrawn from the custody of the Presiding Officer of the court on the pretext that it is required by the Copying Agency for supply of copies to an applicant and thus obstruct the progress of proceedings before the court. Antoher object of this Rule appears to be that so long as the case is pending in court the responsibility for safe custody of the documents (those that have been admitted in evidence as well as those that have still to be admitted in evidence) and toher records rests with the Presiding Officer of the court. This responsibility can be shared by him with the Copying Agency only with his permission.

(14) There is a great deal of practical wisdom and soundness behind this rule but the utility of the Rule will by no means be lessened if instead of refusing an application the Copying Agency shows a little more courtesy and thoughtfulness in directly forwarding the application to the Presiding Officer of the court concerned instead of keeping it with itself for several days and then returning it to the applicant with the endorsement 'refused'. This evinces in my opinion an attitude of being obstructive rather than being helpful and responsive to the needs of citizens and is something for which the persons employed in the Copying Agency can hardly hope to be complemented.

(15) That apart, the validity of these Rules appears to me to have been diminished to a large extent with the transfer of control over the Copying Agency to the District Judge. It is in the fitness of things that fresh rules should be framed for the supply of copies by the Copying Agency run and controlled by the District Judge so as to ensure that the rules now framed are more in keeping with the spirit of the time and accord to the litigant the civility and service which is due to him as a citizen who has come to court in quest of justice.

(16) I am also nto fully satisfied that the present case could be regarded as a pending case when a final order had been passed by the Addl. Rent Controller issuing a warrant for possession against the appellant. So far as the appellant was concerned the controversy was at an end. The rest was only a matter for execution of the judicial process between the court and its executive agency. The application made by the appellant to the Copying Agency should on this account be held to have been made to a proper authority and its refusal by that authority was obviously wrong. Even so, it was the duty of the Copying Agency to have. informed the appell.ant on 10/6/1964 when his application was refused. The appellant could nto be expected to call at ihe office of the Copying Agency everyday in order to ascertain what action, if any, had been taken on his application. Delays in preparation of copies by the Copying Agency are nto hidden from all those who have had something to do with that Agency. If the appellant thereforee genuinely believed that the copy applied for could nto be ready for a month or so and thereforee did nto call for it till 17/7/1964 there was ntohing un-usual in his conduct. The fault if any lay with the Copying Agency which neither ntoified the fact of refusal of his application on any ntoice board outside its office nor did it send any intimation to him by post.

(17) The second application made by the appellant to the Addl. Rent Controller on 31/7/1964 can also nto be held to have been made to a wrong authority. The order in question was admittedly made by the Addl. Rent Controller and as such he was the Presiding Officer of the 'court' to whom the application for copies was required to be made. Assuming the file had in the meanwhile been called for by the Rent Control Tribunal, the appellant cannto be held responsible for the delay in obtaining the copy. With respect to this application, the Tribunal has conceded in his order that the permission required for obtaining the copy was that of the Addl. Rent Controller although the file was pending before the Tribunal. If the Controller thereforee did nto grant the necessary permission because the file was at the time before the Tribunal, the appellant cannto be penalised for the same.

(18) On an over-all consideration of all the aspects of the case,I regret my inability to agree with the Tribunal that the appellant was nto entitled to enlargement of time on the ground that the appellant could nto take into account the time spent by him in obtaining the certified copy of the order between 16/5/1964 and 29/9/1964. The appeal filed by the appellant must thereforee be held to be within time and the order made by the Tribunal dismissing the same on that ground must be set aside.

(19) As the appellant's appeal has been mainly dismissed by the Tribunal on the ground of limitation, ordinarily I should have been inclined to remand the appeal for a fresh decision on merits. In the present case, however, I do nto consider it necessary to do so because in my opinion the appellant has no case on merits atall. In the first place, a second appeal lies to this court under section 39 of the Delhi Rent Control Act, 1958 if the appeal involves some substantial question of law. In my opinion no such substantial question of law arises in the present case. The only ground urged by the learned counsel for the appellant is that the Competent Authority under the Slum Areas (Improvement and Clearance) Act, 1956 has no jurisdiction to make a conditional order of the type made by it in the present case.

(20) Reliance is placed by the learned counsel in support of his arsliment on a judgment of D. Fa'.shaw C.J. in Shri Habibul Haq v. Shri Thakar Dass and antoher 1963 P.L.R. 649 where it was held that although it was permissible for the Competent Authority to make an interim order providing for a certain condition the final order must be passed granting or refusing permission and no final order imposing any condition can be passed by him. The decision is based on the construction of sub-section (3) of section 19 of the Act which provides that when the landlord applies for permission to execute a decree for ejectment and the Competent Authority has heard the parties and made such inquiry into the circumstances of the case as it thinks fit, it shall by an order in writing either grant such a permission or refuse it. But the learned Judge conceded that it was nto the meaning of the section that a conditional order could nto be passed at all and observed that in many cases in which hardship was involved to btoh parties a condition for surrender of a portion of the disputed property could and should be imposed when permission to execute the decree was refused to the landlord as a whole.

(21) I n my opinion, if an order refusing permission to the landlord to execute the decree as a whole can be passed under section 19(3) .of the Slum Areas (Improvement and Clearance) Act on the condition that the tenani surrenders a portion of the disputed property to him it is equally permissible to refuse permission altogether on the condition that the tenant pays the entire arrears of rent or occupation charges as may be recoverable under the law by a certain date. Likewise it is equally permissible to impose a condition on the tenant that if he fails to pay the entire arrears which are legally recoverable from him by a certain date the landlord's application for permission to execute the decree shall stand granted. The conditions envisaged in the two kinds of orders mentioned by me are in no way more onerous or less equitable than the condition envisaged in the order that found favor with Faishaw C.J. in the case cited above.

(22) I am nto impressed by the argument of the learned counsel for the appellant that while an interim order imposing a particular condition can be passed no final order imposing such a condition can be lawfully passed under the section. Once it is accepted that a conditional order can be made by the Competent Authority under section 19(3) of the Act the distinction between an interim conditional order and a final conditional order appears to me to be of no consequence at all. The question is merely one of moulding the relief to the requirements of the situation.

(23) In the present case the order made by the Competent Authority in substance is that permission to execute the order of eviction is granted to the landlord but if the tenant pays the entire arrears amounting to Rs. 1883.72 by 29/2/1964 the permission granted to the landlord shall be of no effect. I do nto find anything illegal or irregular about such an order. But even if it is assumed that the order is wrong in law, can it be said that it is an order without jurisdiction In my opinion the answer is an. emphatic no. Besides, such an order can only be challenged under Article 226 and 227 of the Constitution and its validity cannto be questioned in execution proceedings. The duty of the executing court is to execute the decree or order as it finds it. The appellant does nto challenge, as indeed he cannto, the validity of the order of eviction passed against him. His attack is solely directed against the order of the Competent Authority which admittedly is neither the authority that made the order of eviction in the first instance nor the authority entrusted by law with the execution of the said order.

(24) The reliance placed by the respondent's counsel on the judgment of their Lordships of the Supreme Court in Kiran Singh and tohers v. Chaman Paswan and tohers A.I.R. 1964 S.C. 340 in- this connection appears to me to be wholly inept as the principle enunciated therein relates to a decree passed by a court without jurisdiction which in their Lordships' opinion is a nullity and thereforee its invalidity can be set up whenever and wherever it is sought to be enforced, even at the stage of execution and even in collateral proceedings. In the present case we are nto concerned with a decree or order that is a nullity.

(25) The result of the foregoing discussion is that the appeal fails and is consequently dismissed with costs.


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